Updated 4:08 p.m.
The Justice Department is urging a federal judge in Washington to reject a suit that alleges department officials in 2006 used job candidates' political and ideological affiliation to decide whether to grant interviews to applicants.
The claims from three plaintiffs, each a former applicant for the Justice Department’s highly competitive Honors Program, stem from an internal DOJ report published in 2008 that found members of a screening committee improperly examined political and ideological affiliation in rejecting candidates.
The plaintiffs contend in the suit in Washington federal district court that Esther McDonald, a front-office lawyer under Attorney General Alberto Gonzales, sought out and printed personal information about candidates during Internet searches. The records were later destroyed. The suit alleges the records should have been preserved.
In court papers (PDF) filed Monday night, DOJ lawyers said the Office of the Inspector General and Office of Professional Responsibility report on the politicization of the hiring of career lawyers “is completely silent as to the requirements of the Privacy Act. Whatever misdeeds the report highlights, it says nothing about whether Esther McDonald ever created the specific records that form the basis of this dispute.”
Daniel Metcalfe, lead attorney for the plaintiffs, said in a statement this afternoon: “The Justice Department’s filing blithely chooses to ignore the legal effect of its gross evidence destruction, taking positions so extreme that they themselves practically prove the merits of plaintiffs’ case. Plaintiffs look forward to pointing this out in great detail.”
Justice Department trial attorney Brad Rosenberg of the Civil Division said in the court papers the plaintiffs have failed to show that any members of the screening committee “ever considered internet records of any description relating specifically to them.”
McDonald, according to Rosenberg, “rarely printed information from the internet, and only occasionally make internet-related notations on the working copies of employment applications.”
Rosenberg said there are “possible” reasons why the plaintiffs—James Saul, Matthew Faiella and Daniel Herber—did not receive job interviews “that would have nothing to do with their claims arising under the Privacy Act.” He cited “obvious typographical errors” on one application and grades “in the bottom half” of a law school class on another.
In a deposition last year in the suit, Gonzales said he was disappointed “I didn't do things differently" to stop the politicization of the program for hiring career lawyers. “I feel disappointment in myself," Gonzales said, according to documents filed in the suit. Gonzales also said: “I, the attorney general, am ultimately responsible.”
The plaintiffs are seeking monetary damages, including out-of-pocket job search expenses and lost wages—the salary the attorneys missed out on at the Justice Department.
DOJ lawyers contend that none of the plaintiffs will be able to show that they would likely have received a job offer had they not been rejected from the applicant pool. DOJ said the plaintiffs have not identified damages stemming “from the loss of this mere ‘opportunity’” to interview for a career post.
In his motion for summary judgment (PDF) filed in May, Metcalfe said the suit “seeks accountability for what was the most blatant misconduct by high-level Department of Justice officials in recent memory.”
“[T]his is a case of extraordinarily gross agency wrongdoing—nothing less than the corruption of the premier government attorney hiring program in the nation by the cabinet department regularly charged with enforcing, not violating, our nation’s laws,” said Metcalfe, who teaches at American University Washington College of Law. “From brazen violations of long-respected civil service rules, to flagrant records-maintenance practices, to vividly inculpatory record destruction—all at the highest levels of the Department—this case now cries out for strong accountability.”
Judge John Bates of Washington federal district court is expected to hear the dispute in October.